Delhi District Court
Ashok Kumar vs Jaswant Pal Kalra on 6 December, 2018
IN THE COURT OF SH. ANIL KUMAR SISODIA :
SPECIAL JUDGE (PC ACT) (CBI)04: CENTAL DISTT:
TIS HAZARI COURTS: DELHI
CNR No. DLCT010119222018
Criminal Revision No. 657/2018
Ashok Kumar
5, Pine Drive DLF,
Chattarpur Farms,
Mehrauli, New Delhi110030. .....Revisionist
Vs.
Jaswant Pal Kalra
18/618, 2nd Floor,
Joshi Road, Karol Bagh,
New Delhi110005. ..... Respondent
Arising out of matter :
CC No. 516146/2016 Jaswant Pal Kalra Vs Ashok Kumar PS Karol Bagh Date of Institution of revision : 14.09.2018 Date of reserving order : 03.11.2018 Date of pronouncement : 06.12.2018 JUDGMENT
1. By this order I shall dispose of the present revision petition filed by the revisionist challenging the order dated 21.06.2018 passed by the C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 1 of 9 Ld. Trial Court whereby Ld. Trial Court dismissed the application for dismissal of complaint filed by revisionist/accused and has directed framing of notice.
2. Briefly stated facts necessary for disposal of this revision petition are that the respondent filed a complaint against the revisionist and others u/s 138 NI Act on the basis of dishonour of three cheques purportedly issued by the revisionist as authorized signatory of M/s Kassa Finvest Pvt. Ltd. for a total sum of Rs. 12 lacs.
3. After completion of presummoning evidence and hearing the arguments, Ld. Trial Court vide its order dated 21.05.2015 did not summon accused no. 3 and summons were issued to revisionist and accused no. 2 M/s Kassa Finvest Pvt. Ltd only. On appearance the revisionist filed an application for dismissal of complaint which was dismissed vide impugned order dated 21.06.2018.
4. Aggrieved by the impugned order, the revisionist has filed the present revision petition on the grounds that:
(i)The impugned order is patently illegal, arbitrary, and is bad in law thus deserve to be set aside;
(ii) Ld. MM failed to apply his judicial mind before passing the impugned order and failed to appreciate that necessary ingredients for offence u/s 138 NI Act have not been completed as the requirements of C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 2 of 9 proviso to Section 138 NI Act have not been met;
(iii) That no valid legal notice has been sent to the drawer of the cheque or the accused no. 1/revisionist in any capacity of him being involved in the day to day functioning of drawer of the cheque;
(iv) That it is neither the case of the complainant nor evident from the facts on record that the legal notice was sent to the accused no. 1/revisionist in capacity of being the director of accused no. 2 and it was sent only regarding dishonour of cheques to accused no. 1/revisionist in his capacity as the Director of accused no. 3 who has not been summoned by the Court;
(v)That "piercing of corporate veil" cannot be used to over come the fact that the ingredients of an offence u/s 138 NI Act had not been fulfilled and complainant had not discharged the onus that the legal notice was sent to the person/legal entity that had drawn the cheque.
(vi) Ld. Trial Court erroneously relied on the address of accused no. 2 & accused no. 3 being the same, to hold that it is irrelevant which of the two sanctity legal notice is being sent to and a notice to Kassa Holdings and its director would also amount to notice to M/s Kassa Finvest and its directors;
(vii) That the complainant has not filed Form 32 on record to show that the revisionist was a director/authorized signatory of accused no. 2 M/s Kassa Finvest Pvt.Ltd. A bare perusal of legal notice dated 31.03.2015 would make clear that notice was only issued to accused no. 3 M/s Kassa Holding & Consultants Pvt. Ltd. (since not summoned) and C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 3 of 9 revisionist/accused no. 1 in the capacity as Managing Director of accused no. 3. No other statutory notice has been issued by the complainant;
(viii) Ld. Trial Court has gravely erred in holding that despite absence of Form No. 32 on record, he can frame notice on the accused/revisionist or that it was for the revisionist to show the relationship with accused no. 2. Reliance was also placed on Rajesh Aggarwal Vs State & Anr. (2010) ILR 6 Delhi 610 wherein onus of completion of such details was held to be on the complainant.
(ix) That Hon'ble High Court of Delhi in Sudeep Jain Vs M/s ECE Industries Ltd. 201 (2013) DLT 461 has held that in a case where accused are being arraigned for vicarious liability of an incorporated entity a complaint should also be accompanied with a copy of Form 32 filed with the Registrar of Companies;
(x) Ld. MM ignored the fact that an order dated 21.05.2015 of Ld. Predecessor Court had dropped the party in whose name the legal notice was issued, i.e Kassa Holdings as no offence could have been said to have been committed by the said legal entity.
(xi) Ld. MM gravely erred in ignoring the dictum that a valid notice u/s 138 NI Act is necessary for a cause of action u/s 138 to arise. Reliance in this regard was placed on Aniyan Thomas Chacko Vs Varvelil Bankers, 2006 CrilLJ 435.
(xii) Ld. MM gravely erred in ignoring the provisions of Section 362 of Cr.P.C in reviewing the earlier order dated 21.05.2015 where Ld. C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 4 of 9 Predecessor did not find any offence being committed by accused no. 3;
(xiii) That Ld. Trial Court gravely erred in concluding that there was sufficient grounds to proceed against the revisionist and failed to consider that there was no material whatsoever for supposing the existence of an offence under Section 138 NI Act.
A prayer was made for setting aside the impugned order dated 21.06.2018.
5. Notice of the revision petition was issued to the respondent who appeared through counsel and contested the revision petition.
6. Trial Court Record was also summoned before hearing the arguments.
7. I have heard Ld. counsel for the revisionist as well as Ld. counsel for respondent and have perused the record carefully.
8. Before hearing the arguments on merits, arguments have been heard on the maintainability of the revision petition before this Court in the light of observations made by Hon'ble Supreme Court in the case of Adalat Prasad Vs Roop Lal Jindal & Ors.,V (2004) SLT 353; Subramaniam Sethuraman Vs State of Maharashtra & Anr. V (2004) SLT 708; and Amit Sibbal Vs Arvind Kejriwal, (2018) 12 C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 5 of 9 SCC 165.
9. Ld. Counsel for the revisionist has filed written submissions on the maintainability of the revision petition and has also orally argued that the revision petition filed by the revisionist is maintainable. It has been argued that the impugned order dated 21.06.2018 is not an interlocutory order as held in Madhu Limaye Vs State of Maharastra (1997) 4 SCC 551 and recently reiterated in Asian Resurfacing of Road Agency Pvt. Ltd. & Ors. Vs CBI, AIR 2018 SC 2039. It was also argued that as per Section 399 Cr.P.C a sessions Court has the same power of revision which may be exercised by Hon'ble High Court. He further argued that Hon'ble High Court of Delhi in numerous decisions including the decision of Suresh Batra & Ors. Vs SEBI (2011) ILR 5 Delhi 334 and Vipin Kalra Vs State 2002 (61) DRJ 236 exercised its revisional jurisdiction and set aside an order deciding to frame notice u/s 251 of Cr.P.C. It was also argued that the judgments of Subramaniam Sethuraman (Supra) and Adalat Prasad (Supra) cannot be relied on to disregard the jurisdiction of this court. He further argued that the judgment in Amit Sibbal's case (Supra) was a consent order and is not binding on this court. He further argued that Hon'ble Supreme Court in Meters and Instruments Pvt. Ltd. & Ors. Vs. Kanchan Mehta (2018) 1 SCC 560 has held that despite Subramaniam Sethuraman's case (supra), there are instances under which a Magistrate can still discharge the accused.
C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 6 of 910. Reliance was also placed on the judgments of Hon'ble High Court of Delhi in:(a) South Delhi Municipal Corporation Vs BSES Rajdhani Power Limited decided on 14.07.2015; (b)Bal Ram Vs BSES Rajdhani Power Ltd. & Ors. Decided on 20.04.2015; (c) Rainee Singh Vs State, decided on 29.09.2014; and (d) S.K. Bhalla Vs State & Ors., decided on 13.05.2011, to argue that Ld. MM is not expected to function like a post office and mechanically frame notice but is bound by law to apply its mind to find out whether prima facie case is made out or not. Ld. Counsel for the revisionist has further placed reliance on the judgments of Rahul Builders Vs Arihant Fertilizers & Chemicals & Anr., (2008) 2 SCC 321 and Ramaraj Vs Rajesh Kumar MANU/KE/1027/2014 in support of his arguments.
11. I have heard counsel for the revisionist and have carefully perused the written notes (arguments) and judgments relied by him.
12. At the outset, it may be mentioned that none of the judgments relied upon by the counsel for the revisionist are of any help to him. A complaint case u/s 138 NI Act is a "summons case". The procedure for summons case is provided under Chapter XX of Cr.P.C. A bare perusal of this Chapter would show that there is no provision for discharge of the accused once he has been summoned.
C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 7 of 913. Law is now well settled by the judgment of Hon'ble Supreme Court in Adalat Parsad Vs Roop Lal Jindal & Ors., V (2004) SLT 353 and S. Sethuraman Vs State of Maharastra & Anr. , V (2004) SLT 708 that Chapter XX of the Code does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. The only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Cr.P.C.
14. The judgments of Hon'ble Supreme Court in the cases of Asian Resurfacing of Road Agency (supra) and M/s Meters & Instruments Pvt. Ltd. (supra) relied upon by counsel for revisionist are distinguishable on facts. In Asia Resurfacing of Road Agency (supra) Hon'ble Supreme Court was dealing with the provisions of special statued i.e prevention of Corruption Act whereas in the case of M/s Meters & Instruments Pvt.Ltd. (supra), Hon'ble Supreme Court had dealt with the powers of Court to try the cases summarily as provided under Section 143 NI Act. Similarly the judgment of Madhu Limay dealt with the issue as to what orders are interlocutory orders. None of these judgments specifically dealt with the law laid down by Hon'ble Supreme Court in Adalat Prasad (supra) and Subramaniam Sethuraman's case (supra). It has been repeatedly held in the above cases that the only remedy provided to the accused so summoned under the given circumstances is under Section 482 Cr.P.C, which view has C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 8 of 9 also found favour Hon'ble Supreme Court in the case of Amit Sibbal Vs Arvind Kejriwal & Ors. (supra).
15. In light of the observations made by Hon'ble Supreme Court in the case of Amit Sibbal (Supra), specifically remanded the case back to Hon'ble Delhi High Court for decision on merits while exercising the power under Section 482 Cr.P.C, the law of precedents would prevail and this court is bound by the judgments of Hon'ble Supreme Court in Adalat Prasat (supra), Subramaniam Sethuraman (supra) and Amit Sibbal (supra).
16. In view of the aforesaid discussion, I am of the considered opinion that the revision petition filed by the revisionist is not maintainable and the only remedy available to him is to approach Hon'ble High Court u/s 482 Cr.P.C for redressal of his grievances. Hence, the revision petition is dismissed as not maintainable and is disposed of accordingly.
TCR be sent back forthwith along with the copy of this judgment.
The revision petition be consigned to Record Room.
Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA
SISODIA Date: 2018.12.06 15:49:16
+0530
Announced in the open court (ANIL KUMAR SISODIA)
On 06th day of December, 2018 Special Judge (PC Act) (CBI)04
Central Distt: Tis Hazari Courts:
Delhi
C.R. No.657/2018 Ashok Kumar Vs Jaswant Pal Kalra Page 9 of 9